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A System Still in Crisis

Saturday, November 27, 2004; Page A30

JAMEL THOMAS COLEMAN, convicted in a Virginia court last year of selling cocaine, claims he "was done wrong" and wants to appeal his conviction and three-year prison sentence. His attorney, however, failed to file his appeal on time. So last May, the state Court of Appeals dismissed it. Mr. Coleman filed a special petition to get it reinstated, a petition the courts recently granted. But as he noted in an interview shortly before that ruling, fixing his lawyer's mistake "takes time" -- six months all told. "By the time [the appeal's] taken care of, I'll probably be home," he said. "But I still want justice."

Mr. Coleman isn't alone in seeing justice delayed or denied through no fault of his own. Between April and September the state court of appeals dismissed at least 165 criminal appeals not because they lacked merit but because people appealing convictions missed key filing deadlines. Attorneys committed most of these errors, not clients representing themselves, and the bulk of those errors were committed by court-appointed lawyers or public defenders named to represent defendants who could not afford to hire lawyers on their own. Every time a lawyer blows an appeal, he or she deprives a convict of a constitutional right to the effective assistance of counsel.

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Such numbers are shocking, but also depressingly typical, as we reported earlier. In 2003, the Virginia Court of Appeals threw out more than 10 percent of its criminal docket because of calendar errors committed overwhelmingly by attorneys. Numerous lawyers were responsible for multiple botched appeals. Possibly innocent people are losing a chance to appeal. Incompetent and overworked lawyers are partly at fault, we noted; so are Virginia's absurdly inflexible rules.

There has been some progress since we published those editorials in July. The Court of Appeals moved to inform the Virginia State Bar routinely of defaulted cases; that should mean that lawyers who fail their clients will be disciplined. The newly formed Virginia Indigent Defense Commission, meeting for the first time earlier this month, unanimously resolved to seek legislative reforms to Virginia's unreasonable rules that make these "procedural defaults" so damaging. The attention to the issue comes none too soon, for, as the new data that we collected show, the problem rages on.

Some attorneys we identified over the summer as having blown multiple appeals did so again during the most recent six-month period. William P. Robinson Jr., the former state delegate from Norfolk whose eight earlier defaults we chronicled, saw four more dismissed in these six months alone. Anthony J. Johnson Jr., a Norfolk attorney who works part time for the public defender's office in Portsmouth, added two more bungled cases to his earlier four.

Meanwhile, Richmond defense lawyer Andrea C. Long -- who once comforted a client whose federal appeal had been dismissed because of a late filing that the error "had to be the work of God since it was no fault of yours or mine" -- filed a key document in the wrong court in the case of Corey D. White. Informed of the resulting dismissal in an interview, Mr. White asked, "So I don't get no appeal or nothing and she gets to keep my money?"

Mr. Johnson and Ms. Long did not return calls seeking comment on the circumstances of their defaults or what steps they are taking to remedy their errors. Mr. Robinson declined to discuss his cases.

Then there's Michael S. Arif of Springfield, whose firm has been paid more than $540,000 over the past two fiscal years by the Virginia court system, the vast bulk of this for representing convicted sniper Lee Boyd Malvo. Mr. Arif's firm sent in Mr. Malvo's petition 11 days late, causing the court to throw it out. Mr. Malvo's subsequent plea deal rendered that error harmless, but Mr. Arif's firm also erred in the case of Keith John MacDonald. The firm has twice triggered dismissals by failing to file trial transcripts on time. The first time, which occurred last year, the counsel of record was another lawyer in the firm; the second time, in June, it was Mr. Arif himself. Mr. MacDonald has twice filed petitions to get the appeal restored. Mr. Arif says he hopes the third time will prove the charm. "You can't imagine how stupid we feel," he says. But the intricacies of Virginia law mean that, in correcting past errors, a defendant can compromise aspects of his future appeals.

It may be hard to see the harm of poorly handledappeals when talking about defendants such as Mr. Malvo, who is guilty of an especially heinous crime. But some convicts are innocent and others, while guilty of something, are sentenced unfairly or convicted despite gross legal errors. Appeals are a principal device by which the court system corrects these errors. A system in which so many appeals such as Mr. Coleman's get denied because of irrational rules and lawyer error is one certain to do injustice. The progress on this issue is encouraging, but much more has to change in Virginia before the right to counsel has real meaning.